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October 25, 1972

Lois SERO et al., Plaintiffs,
Russell G. OSWALD, Commissioner of New York State Correctional Services, et al., Defendants

Lasker, District Judge.

The opinion of the court was delivered by: LASKER


LASKER, District Judge.

 Plaintiffs, Lois Sero, Vanessa Carney and Rita Varner, are inmates of Bedford Hills Correctional Facility. Defendants are the Commissioner of New York State Correctional Services, the warden of Bedford Hills and the Governor of the State. Although convicted of crimes which carry a maximum sentence for adults of one year or less, plaintiffs are serving reformatory terms of up to four years pursuant to Sections 75.00 and 75.10, subd. 1 of the New York Penal Law and are deprived of the good behavior allowances provided non-reformatory inmates by §§ 803 and 804 of the New York Correction Law. They allege that these provisions operate to deprive them of their right to equal protection of the law and due process and constitute cruel and unusual punishment. They seek the convening of a three-judge court pursuant to 28 U.S.C. § 2281ff, as well as declaratory, injunctive and miscellaneous relief. *fn1" Defendants cross-move to dismiss the complaint. *fn2" Jurisdiction is predicated on 28 U.S.C. §§ 1343(3), (4), 2201 and 2281.

 The district court's role in determining whether a three-judge court should be convened pursuant to 28 U.S.C. § 2281 is limited to deciding whether the constitutional question raised is substantial, whether the complaint at least formally alleges a basis for equitable relief, and whether the case presented otherwise comes within the requirements of the three-judge statute. Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 82 S. Ct. 1294, 8 L. Ed. 2d 794 (1962). These requirements, that the constitutional attack be against the state statute's general application and that a state officer be named as a defendant (Ince v. Rockefeller, 290 F. Supp. 878, 881 (S.D.N.Y.1968)), are met here, and the complaint alleges a basis for equitable relief. The sole issue which remains as to each of these statutes is whether the complaint raises a substantial constitutional issue. Despite the interrelationship between the statutes, we consider them separately for the sake of clarity.


 New York Penal Law §§ 75.00 and 75.10, subd. 1.

 Section 75.00 of the Penal Law provides that, when sentencing a person aged 16 to 21 ("young adults"),

the court may, in lieu of any other sentence of imprisonment authorized by this title, impose a reformatory sentence of imprisonment. This shall be a sentence to imprisonment for a period of unspecified duration which shall commence and terminate as provided in section 75.10 and the court shall not fix the minimum or maximum length of the period.

 Section 75.10, subd. 1 provides that a reformatory sentence terminates upon discharge of the inmate by the board of parole or the expiration of four years from commencement of the term, whichever is earlier. The practice commentary to Section 75.10, subd. 1 states that "the purpose of a reformatory sentence is to provide education, moral guidance and vocational training for young offenders who are badly in need of such instruction and counsel." McKinney's Consolidated Laws of New York, Penal Law, p. 156.

 Plaintiffs claim that these provisions are unconstitutional on their face because 1) they violate the equal protection clause of the Fourteenth Amendment by discriminating against them (as compared to adults) without a rational or compelling basis; 2) they violate procedural due process because they do not provide for a separate hearing before the imposition of a reformatory sentence and because they establish no standards to guide the sentencing judge, thus permitting abuses of discretion and making appellate review impossible; and 3) they violate the cruel and unusual punishment clause of the Eighth Amendment and substantive due process by allowing the imposition of a sentence with a possible maximum of four years for minor offenses. Plaintiffs contend, further, that the provisions are unconstitutional as applied because the treatment which is the justification for reformatory sentences is not in fact given to persons serving them.

 Defendants oppose the convening of a three-judge court and cross-move to dismiss the complaint on several grounds. First, they claim that this action, which was brought pursuant to 42 U.S.C. § 1983, should have been brought as a habeas corpus action to be heard by a single judge after exhaustion of state remedies. Second, they argue that case law clearly upholds the constitutionality of the challenged provisions on their face and, accordingly, no substantial federal question is raised. Third, they contend that a three-judge court is not required to challenge the application of a statute which is constitutional on its face and that such a challenge cannot be brought as a class action. Finally, they maintain that the sentencing procedures do not deny reformatory inmates due process since discretion and flexible procedures are accepted characteristics of the sentencing process.

 Defendants' contention that a suit such as this should have been brought as a habeas corpus action on behalf of the individual named plaintiffs before a single judge (after exhaustion of state remedies) was disposed of in Gesicki v. Oswald, 336 F. Supp. 365 (S.D.N.Y.1971) (convening opinion) and 336 F. Supp. 371 (S.D.N.Y.1971) (three-judge court), affirmed, 406 U.S. 913, 92 S. Ct. 1773, 32 L. Ed. 2d 113 (1972). In Gesicki, plaintiffs challenged their confinement under the Wayward Minor Act in a suit brought pursuant to both the Civil Rights Act and the Habeas Corpus Act. The convening court found that exhaustion of remedies was not required since the state courts had recently and unambiguously upheld the constitutionality of the challenged statute. 336 F. Supp. at 367-368.

 The case before us is in much the same posture as Gesicki. Lois Sero and Rita Varner, and another person not a named plaintiff, have actually exhausted their state remedies. *fn3" Since the City Court of Buffalo decided the issues before us adversely to Sero and Varner and the Erie County Court and the Court of Appeals denied them leave to appeal, "it would be a futility" (336 F. Supp. at 367) to require the other named plaintiffs to perform the empty know will be refused them. United States ex rel. Hughes v. McMann, 405 F.2d 773, 775-776 (2d Cir. 1968).

 Moreover, Gesicki shows that defendants' contentions that a suit such as this is not a proper class action and cannot be decided by a three-judge court are without merit. Gesicki clearly indicates that a habeas corpus action can be brought as a class action (336 F. Supp. at 373) and decided by a three-judge court (336 F. Supp. at 374, n. 3), if the prerequisites of a class action are met and an injunction against the enforcement of a state statute is sought. Indeed, the court in Gesicki held that the action could have been brought under either the Civil Rights Act (28 U.S.C. § 1343) or the Habeas Corpus Act (28 U.S.C. § 2254). 336 F. Supp. at 374, n. 3. The Gesicki rule is applicable here, but in one material respect this case is even less clearly a habeas corpus action than Gesicki. In Gesicki, the statute under attack had been repealed prior to the commencement of the action, though it remained in effect as to persons previously sentenced under its provisions, including the plaintiffs. Accordingly, the effect of the statute, there, was limited to the expiration of the term of those already in custody, or on parole or probation pursuant to its provisions. ...

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